Criminal lawyers oppose Country Liberals on mandatory sentencing

It’s about heavier not fairer punishments and it does not deter offenders, they say.

By KIERAN FINNANE

Mandatory sentencing is strongly associated with the dying phase of the last Country Liberal Government. In many ways Terry Mills leads a different CLP into this election campaign, but it seems the leopard can’t lose this particular spot – a ‘lock ’em up reflex.

Earlier this month, responding to concern over attacks on taxi drivers Mr Mills announced what looks to be a one strike mandatory sentencing policy for assaults on anyone serving the public, not only taxi drivers but including “bus drivers, public servants, bank tellers, retail and hospitality workers”.

An assault on this broad category of victim – including, for example, bouncers at night clubs – will be defined as “aggravated” and attract a minimum sentence of three months.

This beefs up the party’s existing two strike policy statement (see their website) for assault: as a second offence, any assault will attract a minimum of one month; an aggravated assault, a minimum of three months; and causing serious harm, a minimum of one year.

The core problem with this approach – whether to property crime as in the old CLP regime or violent offending – lies with its failure to take account of an almost infinite variety of circumstances and human responses to them.

Russell Goldflam is President of the Criminal Lawyers Association of the NT, which represents both defence and prosecution lawyers. As he explains, assaults coming before the court can be very minor.

“Assault covers a very, very broad range of activities. You can have an assault which is no more than grabbing somebody by the arm, that in some circumstances can be judged as unlawful.

“Of course the definition doesn’t include force used ‘for the common intercourse of life’, for example a bit of pushing trying to get on a bus, but for an assault to be deemed to have occurred, a person doesn’t even need to have been touched, it can simply be a threat to do so.”

Serious assaults get serious time

Of course, serious assaults deserve a serious response and get it without mandatory sentencing, says Mr Goldflam.

On the very day that Mr Mills made his announcement, a young man who had assaulted and robbbed a taxi driver, was sentenced by the Chief Justice Trevor Riley to two years and three months imprisonment, with a non-parole period of one year and three months.

“I haven’t heard any suggestions that that sentence was too soft,” says Mr Goldflam. “And if that person feels it was too harsh, he can appeal. If the Crown thinks it was too soft, they can appeal. There’s a procedeure to correct sentences imposed. You can’t correct the injustices of mandatory sentencing.”

That injustices will occur is inevitable, for as anyone who has sat in a court knows, one size does not fit all.

Take, for example, an altercation in a shop, leading to some kind of forceful touching or threat of it.

“We had a case like this,” says Mr Goldflam, who is a senior NT Legal Aid lawyer.

“A shopkeeper was racially abusive to one of our clients. In that case I think the person damaged some property, but let’s say he had pushed the shopkeeper, that would have been an assault, even if the shopkeeper hadn’t suffered any injury whatsoever. Under Mr Mills’ proposed policy, the person would go to gaol for three months.”

Under the law as it stands, assault mandatorily attracts a term of imprisonment – a CLP measure from the 1990s that has not been repealed by Labor. However, the length of the term is not specified, allowing judges the discretion to impose a nominal term where warranted. For example, a person convicted of assault deemed to be very minor or technical in nature could be ‘imprisoned’ until the rising of the court for lunch (“still bad”, says Mr Goldflam, as the imprisonment term goes on to a person’s record).

No mitigating circumstances

In the example of the abusive shopkeeper mentioned, under existing law provocation would not be a defence but it could be taken into account by the judge when sentencing.

Says Mr Goldflam: “Many assaults are committed after being provoked and the courts will always have regard to provocation as a mitigating circumstance when it’s a feature of the case.

A person before the court might also have never been in trouble before, but again with mandatory sentencing this would count for nothing.

Sooner or later the injustice of this would become apparent to the public, just as it did with the old regime of mandatory sentencing for property crime, and government would come under pressure to fix it.

Mr Goldflam recalls the notorious case of a client of his who was a trainee preschool teacher without any criminal record – “a totally ordinary young woman from suburban Darwin”.

“She was buying a hot dog at 2am in a 24 hour store. The hot dog was revolting and she threw water at the rude salesperson. Some of the water fell on the cash register and damaged it, and she was found guilty of property crime and went to gaol for 14 days.

“There was a huge hoo-hah about it and in response the CLP government passed a law to establish exceptions for mandatory sentencing, whereby basically if you were a person like her, a suburban trainee preschool teacher and the offence was trivial, a judge could use their discretion about penalty. It didn’t help her, she’d already done her time, but it was tailored for people like her.

Making exceptions

“Then another case came along, where the person didn’t quite fit the exceptional circumstances, so they were subject to a gross injustice and so on.

“That’s what would happen with this new law that’s proposed. Inevitably there would be a gross injustice followed by public outcry and they’d pass a law to bring in exceptional circumstances. This would all be extremely expensive and time-consuming, apart from the justice issues involved.”

And once again, the NT – a tiny and young jurisdiction – would be a a complete outlier in the Australian justice context.

“I’m unaware of any other jurisdictions where there’s mandatory sentencing for assault of someone who serves the publc. There may be mandatory sentencing for assault police, but there’s nothing anywhere near the scope of this proposed law.

“The whole basis of our criminal justice system, is that the disposition must be individualised, you have to tailor the sentence to fit the circumstances of the case, and the circumstances of the offender.”

The Sentencing Act lays out in great detail what courts must have regard to in considering sentences. Mandatory sentencing essentially makes a mockery of this Act, passed by a previous CLP government in 1995.

“The Act makes it very clear, the whole sentencing process must be an individualised one. Mandatory sentencing is completely at odds with the framework for sentencing established by their own legislation.

” In his 1997 judgment in the case of Trennery v Bradley, which dealt with the former mandatory sentencing laws for property offences, Justice Dean Mildren put it like this: ‘Prescribed minimum mandatory sentencing provisions are the very antithesis of just sentences. If a court thinks that a proper just sentence is the prescribed minimum or more, the minimum prescribed penalty is unnecessary. It therefore follows that the sole purpose of a prescribed minimum mandatory sentencing regime is to require sentencers to impose heavier sentences than would be proper according to the justice of the case.'”

The separation of powers

A further objection that the Criminal Lawyers Association has is that mandatory sentencing is inconsistent with the constitutional arrangements we have to separate the arms of government – the legislature, the executive (in the NT, the Chief Minister and Cabinet) and the judiciary.

Says Mr Goldflam: “There’s a role for legislators to say to judges, this is the maxium penalty you can impose for a particular offence. The Sentencing Act requires judges to take into account the maximum penalty. Where the maximum for one crime is life as opposed to two years for another, then the judges know that they have to consider that first crime to be far more serious than the second one. But it doesn’t mean they have to impose the maximum. The maximum is reserved for the most serious category of the offence.”

The argument that mandatory sentencing infringes upon the separation of powers does not mean that such laws are invalid. They have been challenged before in the High Court, which has upheld the right of governments to pass them, despite what the judiciary may think of them.

“I’m not saying they can’t pass such a law,” says Mr Goldflam, “I’m saying they shouldn’t.”

And the argument that such scruples are overcome by the laws acting as a deterrent to offending doesn’t hold water, he says.

“The very strict and harsh mandatory sentencing laws applied to propery offences in the 1990s for some years were supposed to act as a deterrent but during that period property offending went up. There is no evidence that mandatory sentencing has the desired deterrent value.”

The association is also concerned about the Country Liberals’ proposals to toughen the Bail Act.

Bail Act already too tough

“As I understand it, the NT already has the toughest Bail Act in the country,” says Mr Goldflam. “As a result, many people who are intending to defend charges, including a proportion of people who will successfuly defend the charges and end up being found not guilty, spend very significant periods on remand. It’s not all that unsual for people to have to wait for over a year to go to trial. I recently had a case where the fellow had been in custody for a year and half and then the Crown decided not to proceed and withdrew it.

“In another case, a bloke did almost two years on remand, went to trial, was found not guilty and went home.

“I’m not saying either should have necessarily have got bail, they’re just examples. The decision to grant bail needs to be exercised judicially but it’s being affected by laws which have created all these presumptions against gettign bail for a very broad range of offenders. That’s bad.

“We advocate that the most recent raft of reforms Labor introduced a few years ago should be wound back. They mean that a whole lot of peope are on remand who may well be innocent and will end up serving many months of gaol for no good reason. The County Liberals want to extend that, even to include fraud cases.

“And this when the gaols are chronically over-crowded, absolutely strained to capacity, with people on remand often having to stay in their cells for 17 hours a day or longer.

“The over-crowding is only getting worse to the point where, as was highly publicised earlier this year, people serving short sentences were serving them in the Alice Springs police watchouse. There was not enough room in the gaol to take any more prisoners at all.”

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28 Comments (starting with the most recent)

NB: If you want to reply to a previous comment, start your comment with this notation: @n where n is the number of the comment you want to reply to.

Ian Sharp

Posted August 10, 2012 at 11:37 am

Russell Goldflam makes a lot of good points here … particularly about provocation. If an assault is committed as a result of provocation then it can be raised as a mitigating circumstance in sentencing (not as a defence). The Magistrate can then decide how much weight to give it when deciding the sentence. Many times the provocation will be slight and the Magistrate will ignore it, but there are times when it is real and worth taking into account.
Mandatory sentencing denies the Magistrate the ability to take all circumstances of a case into consideration when sentencing. Bad Law, made by politicians for electoral reasons. Takes discretion away from the courts and gives it to the police / DPP when they decide what charges to lay in a matter. No appeal against their decision, unlike sentences imposed by courts. Therefore reduces accountability. Not everyone understands the system well enough to appreciate this, we need to inform ourselves. This article from the Alice News is a good start.
Hard to believe that everyone who has commented has in fact read it. Thoughtfully.

Dianne at 26 July. Regarding your comments about multiculturalism, you may not be aware that the Netherlands, with a 6 per cent Muslim population, is abandoning the long-standing model of multiculturalism that has encouraged Muslim immigrants to create a parallel society within Holland. Dutch Interior Minister Piet Hein Donner presented a new integration bill to parliament on June 16.
He announced: “The government shares the social dissatisfaction over the multicultural society model and plans to shift priority to the values of the Dutch people. In the new integration system, the values of the Dutch society play a central role. With this change, the government steps away from the model of a multicultural society. It is necessary because otherwise the society gradually grows apart and eventually no one feels at home anymore in the Netherlands.”
This is an edited version of his speech and I submit that there are some big lessons in this for Australia, in terms of a push for the introduction of Sharia law, refugee status and the unfettered continuation of the Australian multicultural model.

@Bob Durnan … Dubai allows “easy” sales of alcohol to people who aren’t Muslims within licensed premises and at designated take-aways. Visitors can purchase without a permit, permanent residents require a Liquor Permit which seems more to appear a regulatory approach and of course an income earner for the Emirate. One Emirate, Sharjah, I think, bans alcohol sales and consumption absolutely (they are aligned with Saudi Arabia through acquisition of debts).
Dianne is correct, the UAE is generally safer than anywhere I have been in Australia and street drunkenness and violence is very scarce. Graffiti etc are equally scarce. Drunkenness and drink driving tend to lead to three months imprisonment and deportation immediately upon release. You can’t get a permanent resident’s visa without a job and a clear criminal history. Once you cease employment, you have two weeks to leave the country. Australia could learn a lot from the UAE, but we don’t need or want any Muslim lawyers.

“Correct social thinking” will not prevent the violence; only real justice can do that. Lawyers who advocate that someone who takes my life (or anyone else’s life) should have to right freedom are on the side of the criminal.
The concept of forgiving sins / crimes in the name of the victim is very Christian. I am not a Christian – I don’t give lawyers or anyone else the right to pardon crimes against me.

In Dubai (UAE) everyone feels safe, except the criminal. Anti-social behavior is not accepted and law-abiding citizens, both locals and visitors to the UAE, enjoy real human rights, i.e. the right to walk the streets at night without fear; to attend events, visit cafes and to “own” their own society. Women in particular feel safe in the UAE and can be seen walking around on their own late at night – it’s been a long time since I felt safe in my own country.
We have for too long been intimidated by lawyers in western countries actively promoting the right of the criminal to the detriment of the innocent; but it doesn’t have to be that way. Perhaps we should expand Multiculturalism to reserve places on the bench for Muslim lawyers.

Russell@. If you go back into our history of the colony our legal base and understanding convicts had no rights and the horrors that thy endured. How long have women had the right to vote. Since we have colonized Australia our laws have changed, our lives have changed. Progress has seen us develop into an amazing place and through all those hundreds of years a group of paternal soul destroying people have tried to prevent and succeeded to today to keep a race of people in isolation and poverty. They have ensured that a race of people are kept illiterate and impoverished. I am not one of that group. Sorry, Russell, membership in your club is not for me

Janet Brown @ 25 July. 7: 52AM. You keep getting ahead of yourself and further out on a limb with your continual postings on “equality under law” and “paternalism.”
The law, as you see it, is the proverbial blunt instrument that should not change, e.g., the Old Testament Mosaic Law versus the New Testament Law of grace, which does not negate the Ten Commandments, but fulfills them, to give one example which your oft stated “Christian principles” should be familiar.
However, Australian laws are subject to reform in circumstances where parliamentary persuasiveness prevails on Common Law. This is so elementary that I can hardly believe it needs pointing out to progressives like yourself.
The, mostly Indigenous Australians in your sights, many for whom English is not their native language, require a social accommodation due to their differing cultural and educational backgrounds and not least, the historical one. Australian law has acted on this argument, most notably, by removing the doctrine of Terra Nullius and implementing Native Title.
Personal responsibility under the Ten Commandments, for example, still adheres under the sixth, “You shall not kill”, however, under the eighth, “You shall not steal”, Native Title sets out to make an amendment to Australian law.
I have pointed out the fallacy of your paternalism argument at the “Us and Them” site at which I have added my request for your reply to my earlier post regarding your views on alcohol supply conforming to NT Country Liberals policy, a similar blunt Law and Order approach, which, by statistical data alone, will result in an expensive social and financial failure.

Phil, we all dream but life is not a dream. We live to do our best but we’re not equal, that is why we all need to be equal under law. And that is where the true wrong happened. We are not represented by law or protected by law. One of the most amazing books I read was called The Mystic Heart of Justice. It is my recommended reading to anyone dealing with youths participating in offensive behavior. I am also a member of Restorative Justice Association in the states. Have been for 14 years. The association does not believe in paternalism and view that as the main contributor to the increase in youth crime sprees. The association believes in the value of the individual and assisting the individual recognizing that value in self.

If we grow the positive community we all deserve, there’ll be a reduced necessity for people to be incarcerated for anything. Work on the positive spirit of our community … focus on what’s possible if we all choose to build a healthy and sustainable “patch” to share. Remember … it doesn’t cost a cent to change the way we think!

Good to see a more reasoned view Janet. You make a good point about responsibility, howeverI don’t accept the mandatory sentencing aspect. Offenders do need to accept responsibility for their actions – I’m not sure locking people up always achieves this.
As for Keith’s comment, lock up all the crims, that begs the question: who are the “crims”? Shoplifters too? And where are you going to house all these jailbirds? Got the funds to build all the prisons you will need? And what about jail will do these people, thought about that? What happens when they get out of “crim school”? Shouting populism from the rooftops might make you feel good, but contributes nothing meaningful to our situation.

Why don’t you lot just calm down for once and see each other’s points of view? Both Janet and Bob make good points! If I had my way, I’d lock up all of the crims in town, no matter what age they are – just my two sense!!

A little more than sensitive out there about my reply. But in all fairness those who are on the recieving end of the various criminal acts (those who in no way deserve the personal sentences that they received of fear, grief and so many other mental traumas) appear to always be left out of the argument for sentencing of the offenders.
There is a human face and huge psychological trauma to the victims side and yet all we hear about from lawyers is based on the protection on the offenders. My stand on this is not about prison being the answer. It is about perpetrators acknowledging their crime and a consequence of that action.
For each action there is a reaction, except in our courts. I believe in a fair system but I do not support a system that continues to ensure children take no responsibility for their actions. I do support a mandatory system three strikes and your in. If they did not learn from the first two that is their issue. Families of these kids need to repay for damage. Even if they are on welfare. And if the kids are on payments then they need to work in community programs that ensure that they participate and engage in working. The free ride for this group has to end and end now. They don’t want to go to jail or detention centre then stop committing crimes. Oh my what a simple answer.

I think it’s important to recognise and appreciate how free we all feel to air our opinions on Erwin’s website. He keeps it tightly focused on local issues and doesn’t seem to exclude anyone.
Occasionally there is a boil-over, but wouldn’t life be a thin salt-less soup without at least the possibility of that!
I look forward to reading both Bob and Janet and don’t agree with either of them all the time.
Rational? In today’s world? Yeah, right.
On the main thrust of the article, unless the de facto immunity early and pre-teens enjoy in today’s police / lawyer / court system can be addressed, our problems will not be going away any time soon.
The majority of adults facing, or not, mandatory imprisonment learned how to first ignore and then break the law in their early years. We address that, or we continue to deal with the consequences later.

@Erwin … take your point, but wanted to highlight the illogical nature of Janet’s argument. Reminded me of the curfew debate last year,when Samih Habib, Eli Melky and Steve Brown all stated that anyone opposing their support for a curfew was in favour of kids roaming the streets and worse. Just a silly argument, but one they seemed to sincerely believe. We need people in the public debate who are capable and prepared to be rational in support of their point. The benefit of this is that occasionally such rational people can persuade their opponents, or be persuaded to alter their own stance. Result, a better outcome.

Ian, many thanks for your advice on moderation. These are the considerations that come into play: to put comments from our readers through too much of a filter, such as one that requiring our judgement of rationality, means disenfranchising those people whom some – many? – regard as irrational. Yet those people are also members of our community. Do they not deserve to be heard? And is their state of mind not the product of the difficulties in our community? Would excluding them from our discussion not present a skewed, sanitised picture of our community? Do many people not regard as also irrational even the views of politicians now formulating their election platforms? Freedom of speech (of course, short of generalised slurs, personal abuse and defamation)is what we’re striving to provide. Your interest is our reward.

Erwin, you have issued a yellow card to both Janet and Bob. Crikey. I think Bob’s response was mild given the [irrational] nature of Janet’s logic. You should moderate the comments for rationality I think.

Janet: Are you just in training to be ordained a complete lunatic, or are you already ordained?
[ED – Hi Janet and Bob, your comments are greatly appreciated, but we aim to publish well argued opinions (and you have provided many) rather than personal attacks. Please bear this in mind when continuing your exchange in the spirit of freedom of speech in a democratic country, in a medium determined to offer a platform for all points of view, and in a region struggling to maintain an acceptable mode of survival.]

@Bob. So the truth is Bob you support those who rape, steal, disable and murder. Nice to know. Now those who read this site know too. And nice to also know that you not only support but encourage this criminal behavior in our town. After all those crimes are committed by criminals and in 99% of cases violent crimes at that. But poor things, how dare I or others feel that they need to be incarcerated for those crimes. Shame on us!

Reply to Janet Brown (Posted July 20, 2012 at 11:43 am): Goldflam was making valid points about the necessity for separation of powers, the inappropriateness and ineffectiveness of mandatory sentencing, and the injustice of people spending up to two years in gaol on remand when they are quite possibly not guilty of the offence with which they have been charged. Would you not find this intolerable if it happened to you or a family member when you or they were not guilty?
Maybe, Chief Justice Janet, you could sit on a throne and, with your enormous wisdom and insight, carefully divide the entire population into ‘decent’ and ‘crim’ groups, then enact your personal brand of social apartheid and consign the ‘crims’ to a very special hell, without having to send them to trial. The lawyers and other justice sector workers in this town have great respect for the police, and give them much support. Your simplistic assertions on this and other matters impress nobody.

Robinoz @I know I am at a loss as to the inability of the legal system to provide a safe environment to the public. It appears the decent people need to find a place to live and the crims have theirs. After all, their rights are greater than ours. So please explain lawyers who has the right to protection in our town. Let’s hear it loud and clear and in all this, where is your respect for our police officers? It appears you have very little respect for their hard work and efforts.

@Janet. It’s so long since I attended my first law lecture, I can’t remember what it covered. However, I do remember 10 years of police service and the experience that punishments were hit and miss at all three levels of the legal system (Queensland). It was quite clear to me then that vastly different penalties / sentences were given to offenders whose offences and circumstances were almost identical and much of that was down to the individual magistrate or judge. I suspect nothing has changed and although the Territory is a piddling system when compared with Queensland’s, a mandatory component would provide at least some consistency and fairness for offenders.

I thank Russell for explaining so clearly the position of the Criminal Lawyers Association and the implications of mandatory sentencing. Obviously Terry Mills is playing politics at a time leading to elections, he should study law instead!

To overcome inefficient or frightened magistrates / judges handing out trivial or inappropriate sentences, we should have mandatory sentencing for a component of some offences followed by optional sentencing. Despite the comments of the judiciary about how very serious this or that particular offence was, few offenders seem to get the maximum penalty. In fact in the last year or two sex offenders have gotten off without a custodial sentence (if my memory serves me correctly). Don’t the lawyers rabbit on about justice being seen to be done?

Agree with the views of Russell Goldflam, the Criminal Lawyers Association of the NT, and Justice Dean Mildren, that prescribed minimum mandatory sentencing provisions are the very antithesis of just sentences.
To reduce offenders, particularly repeat offenders, requires far more preventative effort to correct anti-social thinking.